Nintendo Goes Copyright On Woman Making Pokemon-Inspired Planters

from the copyright-i-choose-you! dept

Update: We've had several folks communicate with us that Pokemon International does not exactly equal Nintendo. As best as we can tell, Pokemon International was in part founded by Nintendo, who retains some percentage of ownership, but Pokemon operates as a distinct entity and it was Pokemon International that sent the C&D. Thank you to everyone who made us aware of this.

We all know that Nintendo wraps itself in copyright law like some kind of really boring security blanket. Every once in a while, the company will make some noise about being more open and accommodating to its biggest fans and the like, but that noise is usually followed up by a rash of takedowns and C&D letters. The most recent battlefront Nintendo has entered in the war against its own fans is the floral planter arena. One woman, admittedly inspired by her love of the Pokemon game series, shared her design for a 3D printed planter on a commerce website.

Claudia Ng had recently purchased a 3D printer, and one of her first projects was to create the model for a Pokémon-themed planter for a friend. She posted it online, and it quickly went viral...She then put the design on Shapeways, a site that allows you to create and share your own 3D-printed objects, and once again the design blew up. It's a simple idea, but one that we've yet to see in official merchandise. The game the design came from wasn't named, but the listing made a few winking references to the Pokémon franchise. Sales went well, but of course it couldn't last.

No, it couldn't last, because Nintendo sent a cease and desist notice to Shapeways, indicating that the planter was infringing on its copyright. Shapeways complied and took the design down and all was just and right in Nintendo's world again. This, by the way, is a picture of what corporate giant Nintendo was so determined to keep from spreading.

You can certainly see why Nintendo was so super-concerned, because if you squint just right, spin around three times, and are a little drunk, that thing looks like a bulbasaur with an artichoke coming out of its ass. It should be noted, by the way, that there's no competing licensed product from Nintendo that's taking sales away or anything. Not that that fact is keeping Nintendo from wanting all the money generated in addition to the takedown, of course.

"Shapeways got a cease and desist from Pokémon International for infringement. They received this on Friday, and Shapeways took it down within the last hour," Ng told Polygon. "They are asking for all the money associated with this model and shapeways will not be printing or shipping any order for the past few days." She may be put in contact with Pokémon International, and she's not sure if anything will come from that potential meeting. This outcome isn't very surprising for anyone involved. "I thought that this would fall under the boundaries of derivative and transformative work. I'm also not a lawyer, and I guess that is the least defined of rules and regulation," she explained.

Against Nintendo, it's unlikely a simple craftsperson like Ng will prevail. And, just to be clear, given the admitted inspiration by the Pokemon character, it's not like Nintendo is exactly wrong that there is some infringement here. It's just that there's absolutely no reason to throw the legal hammer around instead of working out some kind of other arrangement with one of their biggest fans. But, hey, you know...Nintendo.

Reader Comments

The Ancient Tortoise in a World of Hares

I think it's more than just a copyright issue. This is emblematic of the ancient views that drive Nintendo and hold it back from relevance in the modern world. It's a company that's deeply rooted in tradition and its attitude is that it doesn't care if you like what it does or not. This is probably the main thing that's cheesed off third party developers for the Wii-U cause Nintendo actually doesn't care that much about accommodating them and their games. They already own the most popular game franchises in the world, after all, and they're carefully taking notes on Miyamoto's design philosophies as if they plan to clone him later on.

That's probably what's most exasperating when these incidents pop up. Nintendo seems just wily enough to get by and even trump its enemies on occasion without ever having to change its ways for the better, such that, out of the big three console makers today, it really does seem to have the best chance for long-term survival out of them.

Re: The Ancient Tortoise in a World of Hares

i don't know a lot about nintendo, but i'm sure they are just as evil as nearly all giant korporations get...

i'll admit to this: yes, i know what pokemon crap is, but never really paid any attention to it...IF YOU HAD NOT TOLD ME, i would NOT have recognized this as a pokemon thing...

i would have just thought it was a fugly cat/animal/alien/? thing...

HOWEVER, where i do think nintendo and most other giant korporations are unalterably eee-vil, is that they can NOT abide ANYONE making a penny off 'their' (OUR, that's OUR culture, WE made it popular, YOU -nintendo- are just along for the ride) characters/etc, EVEN IF -as you point out- there is no 'competing' products...

an enterprising, creative nekkid ape, has a lightbulb moment, a serendipitous connection, a flash of intuition that takes something someone else has made, and puts in a different context that delights and surprises, and the 'owners' HAVE TO shit on it...(because !trademarks!)

sad, bad, mad world...

(oh, and FUCK YOU whatever, i don't care what the 'law' is, i care what 'morality' is...)

Re: Re: The Ancient Tortoise in a World of Hares

Re: Re: The Ancient Tortoise in a World of Hares

I mostly agree with you. But your argument seems to imply that you think there should be no copyright (kooparight?) law. While I do think our copyright laws are very insane and restrictive, they are still laws and I wasn't arguing whether the law was good or stupid (it's stupid). We need copyright for certain things. If you write a song, no one else should be able to take your words or your music and profit off of them to your detriment. Even though you think I should get "FUCK"ed I still think you deserve that right.

Re: Re: Re: The Ancient Tortoise in a World of Hares

Re: Re: Re: The Ancient Tortoise in a World of Hares

Other than those that want copyright outright abolished(mostly due to seeing how, and how often, it's abused currently), most people here seem to agree that the idea of copyright does have a place, and could make sense, if it was handled reasonably.

The current (effectively) infinite duration of copyright, coupled with absolutely insane fine amounts is what people have a problem with, if those were cut down to more sensible, sane amounts, most people would probably stop having a problem with the system.

However, as long as maximialists continue to ratchet things ever upwards, pushing for longer durations(as though perpetual copyright wasn't already enough...), and harsher penalties, being completely indifferent to the collateral damage to other areas, all that's going to happen is less and less people will be willing to accept copyright in any form, and will instead jump on the 'get rid of it entirely' bandwagon.

Re: Re: Re: Re: The Ancient Tortoise in a World of Hares

If we're going to keep copyright, I also want the concept of derivative works cut right back to what it originally was - a way to prevent trivial changes providing a loophole ("It isn't the same as your book - I changed 'silently' to 'quietly' on page 92"), not a general protection for the ideas being expressed (which aren't supposed to be protected by copyright at all).

Also, that goes for anti-mutilation so-called moral rights. I think a requirement for honest attribution is reasonable, possibly even beneficial, but not preventing anyone creating derivatives even after the copyright has expired.

Re: Re: Re: Re: The Ancient Tortoise in a World of Hares

If I wrote a song, and someone copied it and sold it for profit they would be literally stealing my ideas and then selling them to profit themselves while I did the all of the intellectual leg work.

If I painted a picture and someone copied it and claimed it was their own, then sold it for profit, I would argue that's theft.

Taking the labor of another person and then selling it for your own profit is wrong.

Consider the artist's perspective. What if someone came into your job, claimed to have done all the work you did, then your boss paid them and not you? They're the one profiting, and you are quite clearly at a financial detriment.

I could see a trademark claim, but I don't see any copyright infringement here. Did she copy a copyrighted 3d model to produce her own? No? Then it's an original creation regardless of the inspiration. If it were considered a copyright violation, her use is transformative enough that it shouldn't be in violation. I think the primary issue is just that she didn't have the rights to sell Pokemon items. If she'd dropped the references to Pokemon and just said, "I made a planter in the style of an anime creature," it should be fine.

duh

Yeah, Nintendo is right this time. She shouldn't have been profiting off of the Bulbosaur design. It's not subtle. It's VERY explicit, even w/out the references. If she were giving this away for free, then I don't think it should be a problem. But the fact is, she took a design owned by Nintendo and tried to profit off it. She tried to profit off of another person's work.

I'd say Nintendo is clearly in the right, but the problem arises because Nintendo is so piecemeal in its approach to copyright enforcement. Take a look at the Nintendo themed stuff on Etsy that they don't mess with. I've sold Nintendo themed jewelry and crafts on Etsy but I would get it if Nintendo asked me to stop. It's their right. Their right to copy an image or likeness they own or created at their sole discretion. Their copyright.

Just like you can't write your own James Bond novel but you can a Sherlock Holmes novel: because one character is covered by copyright and the other is not.

Re: duh

If she were giving this away for free, then I don't think it should be a problem.

If it's trademark infringement, maybe (then arguably it wouldn't be a use in commerce). If this article is correct, Nintendo is claiming copyright infringement (correctly or not, I don't know). In that case it doesn't matter if she charges for it.

Re: Re: Re: duh

I thought someone had to profit from it, kind of like how anime studios look the other way at fansubs until the show is licensed.

If there's no profit, it can't be criminal copyright infringement, but someone can certainly be liable civilly for copyright infringement without profiting. For example, the people such as Jamie (sp?) Thomas who have been found liable for copyright infringement via file sharing.

re: duh

Er, Shady....

I refer you to the previous Anonymous Coward (who despite the name is not in fact me) who opined that no, it isn't a copyright issue at all, unless you totally ignore the transformative effect of creating a 3D mesh that superficially resembles an anime character ... whose own shape is drawn on those of nature.

You can't write your own James Bond novel, no. But you can, without fear of copyright issues, make your own statuette of a generic middle aged white guy with a tux and a gun, and label it 'James Bond'. You might have some Trademark lawyers knocking on your door shortly, but the Copyright lawyers don't have any legs, and can't reach the buzzer.

Re: re: duh

Are you sure about that statuette thing? As I understood it if they labeled the statue "James Bond" and sold it they would be infringing on the trademark, but if they copied the likeness (e.g. the suit, the Walther, the pose) then that would be copyright.

Now in your case if it was just a "generic" model in a tux w/ a gun, it might not be a copyright issue in itself, but once you label it "James Bond" you infringe on the trademark and you clearly imply that you're copying the image of the character as well which would likely lead to a copyright issue.

Re: Re: re: duh

The name "James Bond" is not trademarked in association with a 'character wearing a tux with/out a gun' as a few thousand people with that name can absolutely attest too since they can wear tux's and in the USA carry guns.

As for the copyright. NO! Unless it was an absolute reasonable likeness of the actual actors who have portrayed the Ian Fleming character of "HMSS Agent James Bond, 007" and even then it would be highly problematic since the 'tux figure with a gun' is HIGHLY generic.

As for the image above that the 3d printer has created the ONLY moron's in a hurry here are Nintendo themselves. If the person who created that placed it up online again saying 'This is a 3D model of a cat I am calling Pokey' then Nintendo would have no legal leg to stand on (which they don't in this instance anyway).

Re: Re: Re: re: duh

As for the copyright. NO! Unless it was an absolute reasonable likeness of the actual actors who have portrayed the Ian Fleming character of "HMSS Agent James Bond, 007" and even then it would be highly problematic since the 'tux figure with a gun' is HIGHLY generic.

Even then, you'd probably be safe from a copyright claim unless you copied the actual evening dress he wears, unless a studio were to claim that a casting decision was an exercise of creative expression (and if they tried that, you might get some assistance from whoever it is who owns Never Say Never Again, since they wouldn't want that precedent set).

There is a potential copyright issue in copying the gun, but that is so obviously transformative that I can hardly imagine Walther or Beretta thinking they had a case even if they were dumb enough to think that it would be a good idea to sue.

Technically, I suppose someone could claim that copying a person's image from a collection of photographs taken by others makes your model a derivative work, but I don't think that would fly, because each individual image or film would make only a small part of the model, and because the use is transformative.

Re: Re: some infringement? no such thing

That and Pokemon Co. International already sells 3d bulbasaur trinkets like key rings. She doesn't own the copyright on the character Bulbasaur. Pokemon Co. International does. What she made, no matter how many people say it's a "fat cat," is a bulbasaur. Bulbasaur does not exist as a concept, as an independent idea. The idea of "bulbasaur" is not of the same type as the idea of "love" or "peace" which can't be copyrighted

There is no trademark issue here. The only trademark in question is "Pokemon" and that awesome blue and yellow logo. That is the "mark" under which Pokemon Co. International conducts "trade." Their trade happens to be fictional characters and they hold the right of copy over those characters by virtue of their having conceived of them. It would become a trademark issue if someone tried to compete in the same markets as Pokemon Co. International using the same name or "mark."

Re:

Guess I'll be spending my money on books and other entertainment. Thanks companies for saving me a couple hundred on a system and games, that is a lot of money that can instead be used for books/ebooks/music.

Nintendo and Sony

They are both now on my "never support, buy, or use" list. My last Sony devices were a TV (sold in a yard sale), and a dual cassette recorder which I still own, but don't use. Time to have another yard sale!

quiet thread got crowded...

I respect everyone's opinion but I don't see what's transformative about designing a bulbasaur model. I do agree it's cool but that bad ass looking planter cannot be misconstrued for anything other than a bulbasaur. This righteous planter is no more transformative than making your own James Bond story.

Making said James Bond or bulbasaur statue isn't really the problem. The article mentioned that "sales went well," and I think that is where Nintendo gets their legal clout from. I don't think Nintendo should be doing this (though I realize I came across that way earlier) but as long as anyone is profiting from the likeness of a Nintendo property, their sole right of copy gives them the all the justification they need to request a takedown.

That Nintendo aggressively protected their property isn't the problem. It's like many of you and I said earlier: Nintendo isn't consistent in pursuing this stuff. What about all the stuff at cons? What about every homemade trinket, magnet, bauble, or pendant? Nintendo's enforcement is very arbitrary.

But where should they draw the line? What if Nintendo wants to sell a stuffed pikachu for $20 but someone online makes it and sells it for $15? Is that copyright infringement? Does it cease to be copyright infringement if Nintendo isn't selling pikachu dolls? Does it cease to be infringement if Nintendo never sold pikachu dolls? To what degree does a character or likeness have to be transformed before it ceases to be infringement?

I think there are a lot of gray lines here and a lot of legal territory we haven't explored before. I suspect Nintendo may be just as confused about what it can and can't do as we can be. I hope they don't raid cons but I'm pretty sure they have the right to. I hope they don't aggressively police Etsy and Ebay but as things stand now, I still suspect they have the right to.

Re: quiet thread got crowded...

"transformative" is Techdirt speak for "copied directly from the original in a manner we like so it must be okay". The term does have legal meaning, but it's been stretched well past it's breaking point a very long time ago around here.

Nintendo are generally all over the road when it comes to stuff like this, but this one seems like they are legally right, but perhaps marketing wrong. It's up to them how right they want to be in that area.

Re: quiet thread got crowded...

So what's stopping them from raiding conventions? People regularly sell bookmarks, keychains, prints of fanart using established IP. Why stop at one thing no one else has done before? Why single this person out?

Or would you and Whatever rather that Nintendo alienate everyone and sue, as evidenced by his comment above?

Re: Re: quiet thread got crowded...

I merely pointed out that Pokemon Co. International (I was wrong in saying it was Nintendo, Nintendo was not directly involved in this) has a right to protect their intellectual property. I also pointed out that I don't like their capricious enforcement of their legal rights.

But I don't think it's constructive of me to point fingers and assume a mantle of righteousness or judgement. I'm more interested in finding solutions to this silliness. Maybe Pokemon Co. International and other businesses like them need to explicitly spell out which derivations are acceptable.

But that sounds like making a customer sign a EULA every time they buy a product... I think it's unreasonable to subject someone to that level of contractual insanity. But I also think it's unreasonable for a company to let anyone use the images and properties they developed for anything they want.

Of course even defining a middle ground draws a line somewhere in the gray void of copyright law that must be enforced. And no matter how minmalist or maximalist the copyright law is, there will always be those who seek to exploit every legal loophole there is to enrich themselves. Likewise, in the absence of any copyright law there will be those who abuse that trust to enrich themselves at the expense of the creator.

And so there's the problem as I see it. If you try to find a middle ground, you have to have a legal framework to define it. If you have any legal framework, there will be those who will abuse it. But if you have no legal framework, people will still abuse the system.

Re: Re: Re: quiet thread got crowded...

The middle ground at this point would to simply let it go, as Nintendo has done for all other things.

Seriously, Pokemon merchandise has been regularly replicated by fans. Bookmarks. Posters. Dolls. And yet, these don't get C&Ded, and both the company and the fans have thrived. Why piss all that goodwill away by whining IP?

"To all the people who wanted to buy this planter, I'm sorry but Nintendo doesn't want you to have it. If you think this sucks, why don't you contact Nintendo directly and tell them. Here's their contact information..."

doujin

I think we should look to the way Japan has traditionally handled the doujin market to handle this kind of stuff. Pokemon is so embedded into US pop culture there needs to be a provision for it. Sort of like if a brand name becomes too well associated w/ its product (e.g. Xerox, Kleenex, Band-Aid) then it loses its trademark. Or maybe it's more like a cover song... Micro-licensing?

Any other ideas out there that protect intellectual property rights while respecting the rights of the public at large to create derived or inspired works?

last thing

Unless I'm terribly mistaken, Nintendo has no standing in this matter. I understood that you could only copyright a specific implementation of a work. Ideas, basic shapes, and characters, in general, cannot be copyrighted.

If she had copied a specific piece of merchandise that Nintendo was selling, and maybe modified it into a planter, then MAYBE Nintendo would have a case. They didn't bring up a trademark issue which might have stood up, if the trademark for the cat had been filed - that I don't know - but unless she was producing a game or story with the cat in it in competition with Nintendo, trademark wouldn't work either.

This is just another case of intimidation by a large company against someone who is doing no wrong, except making money that the big company can't touch. BAH!!!.

Pokemon Co. International also has lots of officially licensed 3D products on the market in just the same pose as the planter so just making it 3D isn't enough to make it derivative or transformative.

Trademark doesn't apply here because the bulbasaur image does not represent Pokemon Co. International or the "trade" they do in their various markets. Pikachu maybe, but the "Pokemon" logo is what's protected by trademark.

I agree that Pokemon Co. International is being overaggressive in this case but their actions are w/in the scope of the law. A solution needs to be found where users like this can make these awesome things and companies like Pokemon Co. International can still retain control of their property.